Whether it is subconscious, whether it is intentional, or whether it is simply ingrained into the minds of attorneys, legal malpractice is handled differently from all other torts.  Yesterday’s decision from the Court of Appeals highlights this difference.

Dombrowski v Bulson  2012 NY Slip Op 04203   Decided on May 31, 2012   Court of Appeals is a case in which both the US District Court for the Western District and the Court of Appeals recognize that the criminal defense attorney failed his client.  The client was convicted of attempted rape and served about 6 years before the indictment was dismissed.
 

"Plaintiff then commenced this action, alleging that he had been damaged as a result of defendant’s attorney malpractice. In relevant part, the complaint alleged that he had been incarcerated from January 17, 2001 until July 19, 2006. He then served a period of postrelease supervision, which was terminated only after his habeas corpus petition was granted.

Supreme Court granted defendant’s motion for summary judgment and dismissed the complaint, finding that plaintiff’s receipt of Social Security disability benefits while incarcerated precluded his claim of pecuniary damages and that damages for nonpecuniary loss were not available in an action for attorney malpractice. The Appellate Division modified and reinstated the portion of the complaint seeking nonpecuniary damages (79 AD3d 1587 [4th Dept 2010]). The Court recognized that nonpecuniary damages were not available for legal malpractice claims where the underlying action was a civil matter, but found that an individual who had been wrongfully convicted as a result of attorney malpractice in a criminal matter could recover compensatory damages for loss of liberty and any other losses that were the direct result of his or her imprisonment (see 79 AD3d at 1590). The Court then granted defendant leave to appeal, certifying the following question for our review: "Was the order of this Court entered December 30, 2010, properly made?" We reverse and answer the certified question in the negative.

In order to recover damages in a legal malpractice action, a plaintiff must establish "that the attorney ‘failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession’ and that the attorney’s breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages" (Rudolf v Shayne, [*3]Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007], quoting McCoy v Feinman, 99 NY2d 295, 301 [2002]). For malpractice actions arising from allegations of negligent representation in a criminal matter, the plaintiff must have at least a colorable claim of actual innocence — that the conviction would not have resulted absent the attorney’s negligent representation (see Britt v Legal Aid Socy., 95 NY2d 443, 446-447 [2000]). While the criminal charges at issue remain pending, a plaintiff is precluded, for purposes of a civil action, from asserting innocence (see id., at 448).

New York courts that have been confronted with the issue have generally rejected the claim that a plaintiff in a legal malpractice action is entitled to nonpecuniary damages arising out of representation in civil proceedings (see e.g. Dirito v Stanley, 203 AD2d 903, 904 [4th Dept 1994] [affirming dismissal of damages claim for emotional pain and suffering]; Wolkstein v Morgenstern, 275 AD2d 635, 637 [1st Dept 2000] ["A cause of action for legal malpractice does not afford recovery for any item of damages other than pecuniary loss so there can be no recovery for emotional or psychological injury"]). "

Its a policy decision.  "We see no compelling reason to depart from the established rule limiting recovery [*4]in legal malpractice actions to pecuniary damages. Allowing this type of recovery would have, at best, negative and, at worst, devastating consequences for the criminal justice system. Most significantly, such a ruling could have a chilling effect on the willingness of the already strapped defense bar to represent indigent accused. Further, it would put attorneys in the position of having an incentive not to participate in post-conviction efforts to overturn wrongful convictions. We therefore hold that plaintiff does not have a viable claim for damages and the complaint should be dismissed in its entirety. "